Pointing to the increasing role of the judiciary in helping women access safe abortion, a study has found that as many as 243 cases seeking permission for termination of pregnancy were filed across 14 High Courts, and one appeal was made before the Supreme Court between May 2019 and August 2020.
According to the Accessing the Judiciary’s Role in Access to Safe Abortion-II report of the advocacy group Pratigya Campaign, while 243 abortion cases were filed in the High Courts over 1.3 years, prior to this period, only 175 cases had been filed in three years, which shows a spurt in the number of such cases coming to the courts.
In 84 per cent of the cases, the courts granted permission to terminate the pregnancy. While 74 per cent of the cases were filed post the 20-week gestation period, 23 per cent of the cases were filed within the 20-week gestation period and should not have gone to the courts at all.
Out of 74 per cent cases that were filed beyond the 20-week cut-off, 29 per cent cases were related to rape or sexual abuse and 42 per cent involved foetal anomalies. Of the 23 per cent cases filed before the 20-week gestation mark, 18 per cent cases were related to rape or sexual abuse and six per cent of the cases sought permission to abort the pregnancy because of foetal anomaly.
According to Anubha Rastogi, member of the Pratigya Campaign’s advisory group and author of the report, the increase in the number of such cases shows that access to safe and legal abortion services in the country still leaves a lot to be desired. “It is imperative that any change in law takes note of these increasing trends and moves towards a rights-based, inclusive and accessible legislation on abortion,” she said.
Rastogi stressed that any new law or amendment cannot be based on third-party authorisation like the medical boards and has to be respectful of a decision that involves the registered service provider and the pregnant person.
The study found that during the lockdown, access to abortion became even more difficult although there was some respite once the Ministry of Health and Family Welfare declared access to abortion as an essential service. During the lockdown, 112 cases were heard at various High Courts, and 62 of these were heard by the Bombay High Court.
The report emphasises how important it is for law to adapt in accordance to the changing times. The MTP Amendment Bill 2020 is awaiting a nod from the Rajya Sabha and a few changes have been recommended by civil society organisations, which, if accepted, would make the Act progressive and rights based, it states.
According to the report, it is imperative that access to abortion becomes a legal right for women at least in the first trimester. “It is necessary that the opinion of the doctor, that the pregnant person is consulting, should be considered as primary and the only one required. The setting up of medical boards, which has been done by the courts while dealing with cases of this nature, has only created further obstacles for pregnant persons in accessing safe and legal abortion,” it states.
V.S. Chandrashekar, campaign advisory group member, said even if the MTP Amendment Bill was to be passed in its current form, the number of cases approaching the courts is not likely to reduce. He said the proposed amendment bill should increase the gestation limit allowing for pregnancy from 20 weeks to 24 weeks to all women who need to terminate a pregnancy instead of being restricted only to certain categories of women as defined in the MTP Rules.
Similarly, the ‘no upper gestational limit proposed for foetal anomalies’ should be extended to survivors of rape, he said.
